DOJ Review of FBI Investigations

The United States Department of Justice (DOJ) released last month a report out of the Oversight and Review Division, Office of the Inspector General (OIG). The mandate of the OIG is to conduct independent investigations and special reviews of DOJ personnel and programs. The purpose of this 200-page redacted report, A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups, was to respond to media reports and Congressional inquiries alleging that the FBI had improperly targeted domestic advocacy groups between 2001-2006bsolely based on their peaceful exercise of their First Amendment Rights.

Congresswoman Zoe Lofgren’s letter to the OIG and Senator Leahy’s questioning of FBI Director Robert Mueller are discussed in the report, but due to quality of the scanning and redaction the document is difficult to search. I’ve made an optimized and OCR recognizable copy available here, which is the best I could do with this copy.

The Journal of National Security Law & Policy has a short post on the report, as does Steven D. Schwinn at the Constitutional Law Prof Blog.

The FBI’s response to the report through their Office of Public Affairs was,

After more than four years of investigation and an exhaustive review of hundreds of investigative decisions the FBI made after the September 11 attacks, the OIG did not uncover even a single instance where the FBI targeted any group or any individual based on the exercise of a First Amendment right. While the OIG disagreed with a handful of the FBI’s investigative determinations over the course of six years, it has not recommended any significant modifications to the FBI’s authority to investigate criminal conduct or national security threats.

A review by legal analyst Andrew Cohen in The Atlantic that is not quite as glowing states,

FBI agents misled officials and the public, violated their own policy manual, used poor judgment, and engaged in sloppy police work when they investigated certain left-leaning, high-profile, domestic advocacy groups in the years immediately following 9/11, the Justice Department announced today following a four-year-long internal investigation by the Office of the Inspector General.

…while none of the groups were targeted by the FBI for their views alone–one of the key allegations made by critics of the surveillance–the Bureau nevertheless engaged in tactics and strategies toward those groups and their members that were inappropriate, misleading, and in some cases counterproductive. Moreover, the OIG accused FBI witnesses of continuing to the present day to thwart a full and complete investigation into the matter by offering “incomplete and inconsistent accounts of events.” An FBI spokesman said the Bureau “regrets that inaccurate information was provided.”

I find some of the information the FBI appeared to be collecting to be irrelevant and improper, even when investigating ties to international terrorism, such as notes of apparent racial origin disclosed in Appendix B. Even more notable is the finding that Mueller provided “false and misleading statements to the public and to Congress” about an anti-war demonstration in Pittsburgh. But there is no attribution to malice, just simply sloppy work,

We do not believe that the Director intentionally misled Congress. We found no evidence that he received information that should have given him reason to doubt the accuracy of the briefing materials he relied on in preparing to testify. Yet, it is clear that FBI personnel took insufficient care to ensure that Director Mueller was given accurate information. In this case, the Director was poorly served by those responsible for the contents of the routing slip and press response.

A significant cautionary note is worth keeping in mind when reviewing the findings, and the FBI’s response. The Attorney General’s Guidelines for Domestic FBI Operations were revised in 2008, providing the agency with even more latitude that the time period examined in the report. Consequently, one of the key findings of the report is a recommendation to reinstate the prohibition on retention of irrelevant material on attendance at public events,

…some of the violations of policy we found in this review would not be violations if they occurred today. We recommend that the Department examine the Guidelines and the DOJ to determine whether to reinstate the prohibition on retaining information from public events that is not related to potential criminal or terrorist activity.

This is especially important in light of the definition of terrorism which was expanded from the 1989 Guidelines in the 2002 Guidelines, which allowed the agency to conduct a preliminary inquiry on the mere “possibility” that a terrorism enterprise may exist, rather than the “reasonable indication” standard applied previously. This new standard allowed the agency to investigate groups like People for the Ethical Treatment of Animals (PETA), Greenpeace, and The Catholic Worker Movement, collecting information on persons attending multiple “special events.”

The concern that investigative provisions without adequate checks would unnecessary expand to include all types of civilian activities is not unwarranted. The Congressional hearings into the FBI Counter Intelligence Program (COINTELPRO) from 1951-1976 discovered all sorts of abuses, including the targeting of African-American civil rights activists. The Church Committee concluded,

Too many people have been spied upon by too many Government agencies and to much information has been collected. The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power.

Controls put in place following COINTELPRO were only lifted just under a decade go. In light of the FBI’s history in this respect one final recommendation is worth highlighting,

We recommend that the FBI and the Department consider and provide further guidance on when such cases involving First Amendment issues should be classified as Acts of Terrorism matters and when they should not.

The fact that such ambiguity over classification still exists is itself the greatest cause for concern.